Monterey County Superior Court No. SS121299 Honorable Pamela L. Butler, Judge.
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Patrick McKenna, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris Attorney General, Dane R. Gillette Chief Assistant Attorney General Gerald A. Engler, Assistant Attorney General Catherine A. Rivlin and Allen R. Crown Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Michael Ray Gonzales was convicted by jury trial of permitting a person to carry a loaded firearm in a vehicle (Pen. Code, § 26100, subd. (a)). The jury also found true a gang allegation (§ 186.22, subd. (d)). The court suspended imposition of sentence and placed defendant
on probation. On appeal, defendant challenges his conviction on the ground that the prosecution failed to prove that he knew the gun was loaded. Section 26100, subdivision (a) makes it a misdemeanor “for a driver of any motor vehicle... knowingly to permit any other person to carry into or bring into the vehicle a firearm in violation of Section 25850 of this code or Section 2006 of the Fish and Game Code.” (§ 26100, subd. (a), italics added.) Section 25850 and Fish and Game Code section 2006 apply only where the firearm is loaded. Defendant also contends that the trial court prejudicially erred in failing to instruct the jury that knowledge the firearm is loaded is an element of the offense. In addition, defendant challenges the sufficiency of the evidence to support the jury’s true finding on the gang allegation.
We disagree with the First District Court of Appeal’s holding in In re Ramon A. (1995) 40 Cal.App.4th 935 [47 Cal.Rptr.2d 59] (Ramon A.) and find that a section 26100, subdivision (a) conviction requires proof that the defendant knew the firearm was loaded. Although the prosecution presented sufficient evidence to prove this element of the offense, the trial court prejudicially erred by failing to instruct the jury that the prosecution was required to prove this fact. Consequently, we reverse the judgment and remand for a new trial. We find that there was sufficient evidence to support the gang allegation, so the prosecution may retry that allegation in conjunction with the substantive offense.
On the afternoon of July 8, 2012, police officers pulled over defendant’s vehicle. Defendant, aged 27, was the driver, and his two passengers were 15-year-old boys. The officers asked defendant and his passengers to exit the vehicle. As the front seat passenger, John Doe One, got out of the vehicle, he told the officers: “ ‘I’m not gonna lie to you, sir. I have a loaded gun on me.’ ” He was wearing baggy clothing that concealed the firearm. John Doe One told the officers that the gun was in his waistband, and one of the officers removed it. The gun was a functional.45-caliber semiautomatic pistol that had been reported stolen. It had bullets in its magazine. John Doe One’s cell phone bore references to the Santa Rita Bahamas Norteno gang. The rear seat passenger, John Doe Two, was a self-acknowledged Santa Rita Bahamas Norteno gang member. A search of the vehicle turned up “Norteno rap” compact discs in the glove compartment, center console, and trunk.
Defendant was arrested. He admitted that he knew there was a firearm in the vehicle, although he had not seen it. “John Doe One had told him prior to
entering the vehicle, quote, ‘I got something, ’ grabbed his waistband area and shook it up and down, making it pretty obvious to [defendant] that he had a firearm with him.” Defendant told the police that he had been taking the two boys at their request to “Northgate Village, ” which the police knew to be “a common Norteno hangout.” Defendant’s cell phone bore Norteno indicia and particularly indicia of the Santa Rita Bahamas Norteno gang.
A. Substantive Offense
Defendant contends that section 26100, subdivision (a) is not violated unless the driver of the vehicle knows the firearm is loaded. On this basis, he contends that the evidence was insufficient and that the trial court’s instruction on the elements of this offense was prejudicially deficient.
At the instruction conference, the prosecutor raised an issue about the instruction on the elements of the substantive offense. “[S]omething did come to my attention as far as [CALCRIM No.] 2530 goes. That is, that in the jury instructions for 26100(a), number 3, it says that the defendant knew that he was permitting someone to carry a ‘loaded’ firearm in the vehicle. I don’t believe he had to know it was loaded. I believe he just had to know it was a firearm. [¶] When you look at the instruction from 25850 [(CALCRIM No. 2530)], it says in element two, which kind of corresponds to element three, that the person knew he was carrying a firearm. The word ‘loaded’ does not appear.” The defense objected “to removing the knowledge requirement regarding the firearm being loaded.” The court overruled the objection. “[T]he Court finds it improbable that the [L]egislature meant that if you permit someone to bring a firearm into your vehicle you have to then verify whether it’s loaded or not.” “It would put, arguably, the People in an impossible position of how do you prove knowledge and then knowledge that the gun was loaded.”
The trial court instructed the jury: “The defendant is charged in Count 1 with permitting a person to bring a loaded firearm into a vehicle, in violation of Penal Code Section 26100(a). [¶] To prove that the defendant is guilty of this crime, ...